By ALLAN POWELL
December 7, 2012
To no one’s surprise, the right of privacy came into question by diehards of the right in the recent election cycle. Conservative politicians have promised to undo Roe v. Wade, which is grounded on this right. Ever since Roe v. Wade became law, there have been conservative writers (e.g. George Will) who belittle its legitimacy and assert that it is a “newly discovered” right. This canard is repeated by male-dominated legislatures, male-dominated courts and male-dominated organizations.
This is as old as time itself. It took extreme pressure to make male establishments budge. The Magna Carta was forced upon a British king. Our own Bill of Rights (not a part of the original Constitution) was required as a condition of ratification. And the existence of the Ninth Amendment is not enough to convince some that we have a right of privacy. It flatly states that, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This makes it clear that the list in the Bill of Rights though, not specifically including the right of privacy, does not exclude that right.
Nonetheless, the acceptance of this right has come about by the energy, persistence and enlightened conscience of visionaries. Experience shows that this right cannot be taken for granted. Only an awareness of the slow and torturous journey of this right can make us appreciate its value. It is a fact that many who profess to be believers in a minimal state are all too ready to bring the power of the state to invade the privacy of the bedroom.
We owe so much to the young lawyer, Louis Brandeis, who, in 1890, wrote that, “The invasion of privacy constituted a tort (a willful or negligent injury) in itself — because it impaired this individual’s sense of his own uniqueness, trammeled his independence and assaulted his dignity.” It took years to get into law this same concern for women. It also took the laws related to privacy through the arduous sequence of privacy inhering in place, then privacy in relationships and then privacy inhering in person. The success in this achievement can only be attributed to tenacity on one side and stubbornness on the other.
It was the incremental advances using the Constitution (Ninth and 14th Amendments) and court decisions that culminated in Roe v. Wade (1973 — privacy of person). Again, we must be mindful that the organized opposition to these measures is relentless. No wonder then, that Brandeis wrote, “… the right to be left alone (is) the most comprehensive of rights and the right most valued by civilized men.” Later, as a Justice on the Supreme Court, he wrote, “The greatest danger to liberty lurks in the insidious encroachments by men of zeal, well-meaning but without understanding.”
An interesting approach to the right of privacy for women from another perspective which the Roe v. Wade legal approach works is that proposed by Justice Ruth Bader Ginsburg. It uses the demands of the 14th amendment (equal protection of the law) as her preferred route to privacy for women. She argues that challenges to abortion laws, “… do not seek to vindicate some generalized notion of privacy, rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
But, does her approach cover all the bases where privacy applies? Is it adequate for an area of privacy such as that of a marriage relationship? Privacy in this context was settled in 1965 in Griswold v. Connecticut by a 7-2 vote that struck down a Connecticut law that forbade the sale and use of contraceptive devices. As one student of this opinion wrote, “… the decision was correct in viewing privacy as a right that Americans consider fundamental to their way of life.”
The puzzle about this whole issue is why there is such persistent and spirited opposition to a right that is so obviously suited (if not necessary) in an open society? We live in an era when technology makes it possible to invade our privacy in strange and undetectable ways. This requires all of us to be alert to all attempts to infringe on privacy rights.
Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.
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